The following lawsuits were recently filed at the Court of International Trade:
The Commerce Department properly stuck by its decision to issue questionnaires in lieu of on-site verification due to the COVID-19-related travel restrictions on remand at the Court of International, the agency argued in a Sept. 6 brief filed to the Court of International Trade. During the remand, Commerce took a new agency action by finding that the questionnaire responses constituted verification -- a move it says was not only legal but justified since the antidumping duty respondent, Shakti Forge Industries, gave an amount of information that typically exceeds that found in other investigations, and the information corroborated and verified information that Shakti previously submitted (Bonney Forge Corporation v. United States, CIT #20-03837).
The following lawsuits were recently filed at the Court of International Trade:
The Commerce Department erred by including "grossly outdated" data to calculate the benefits derived from the provision of land for less than adequate remuneration in a countervailing duty review, plaintiffs led by JA Solar Technology Yangzhou Co. said in a Sept. 6 complaint at the Court of International Trade. Further, the plaintiffs railed against Commerce's use of adverse facts available over the alleged use of China's Export Buyer's Credit Program and its decision to use certain lease rates to calculate the benefits for JA Solar's reported leases, among other things (JA Solar Technology Yangzhou Co. v. United States, CIT #22-00232).
The Commerce Department, in seeking to have countervailing duty respondents verify that neither they nor their U.S. customers benefited from China's Export Buyer's Credit Program, implemented requirements "so onerous" as to make verification "out of reach," plaintiff Dalian Mesien Woodworking Co. said in Sept. 6 comments on Commerce's remand results. Adding to the rebuke of Commerce's submission to the Court of International Trade, plaintiff-intervenor The Ancientree Cabinet Co. argued that the agency's verification process flies in the face of the court's directive to find a "practical solution to verify the non-use" of the EBCP (Dalian Meisen Woodworking Co. v. United States, CIT #20-00110).
The U.S. Court of Appeals for the Federal Circuit in a Sept. 6 opinion said that the Court of International Trade was right to dismiss a suit from two importers seeking to retroactively apply Section 301 tariff exclusions, for lack of subject matter jurisdiction since a protest with CBP was not filed. The trade court held that it did not have jurisdiction under Section 1581(i), the court's "residual" jurisdiction, since the court would have had jurisdiction under Section 1581(a) had the importers, ARP Materials and Harrison Steel Castings, filed protests with CBP. The Federal Circuit agreed, holding that the true nature of the suit contests CBP's assessment of the duties and not the Office of the U.S. Trade Representative's exclusions, necessitating a protest.
The Court of International Trade in a Sept. 1 order dismissed a customs classification spat over footwear brought by importer Ever Union International. Stephen Swindell, deputy clerk at the court, said that the action was previously placed on the customs case management calendar and was not removed at the expiration of the period of time of removal. The dispute was over the appraised value of the merchandise, as the importer claimed first sale appraisal, though CBP refused to reliquidate the footwear at the price paid by the middleman to the manufacturer (Ever Union International v. United States, CIT #18-00183).
The Commerce Department violated the law by simply averaging ocean freight data from Xeneta and Descartes to value ocean freight in a benchmark calculation in a countervailing duty review, respondent Risen Energy Co. argued in a Sept. 1 complaint at the Court of International Trade. Commerce should have used just the Xeneta data since it is the only source that fulfilled the agency's regulatory guidelines for the cost of ocean freight, Risen said. The respondent also railed against Commerce's use of total adverse facts available over Risen's U.S. customers' alleged use of China's Export Buyer's Credit Program -- a move repeatedly struck down by the trade court (Risen Energy Co. v. United States, CIT #22-00231).
The Court of International Trade should not grant importer Greenlight Organic's and Parambir Singh Aulakh's motion for a certification of an order for an interlocutory appeal in a customs fraud case since the court's decision did not emit a "controlling question of law" to be appealed, the U.S. argued in a Sept. 1 reply brief. The court's opinion denied a motion for judgment since facts were still in dispute, precluding the interlocutory appeal, the U.S. said (United States v. Parambir Singh "Sonny" Aulakh, CIT #17-00031).
The Court of International Trade in a Sept. 2 opinion upheld parts and sent back parts of the Commerce Department's final determination in the countervailing duty investigation on phosphate fertilizers from Russia. In a case contested by respondents PhosAgro Cherepovets and EuroChem and petitioners LLC Industrial Group Phosphorite and The Mosaic Co., Judge Jane Restani found that Commerce erred in adjusting the natural gas benchmark price by adding the relevant 20% VAT and 5% import duty and misapplying its methodology in calculating EuroChem's total sales by relying on a number given by EuroChem that included sales from eight producers and input suppliers to export trading company EuroChem Trading Rus. The judge also sent back Commerce's cut-off date for measuring subsidies in the Russian economy.